Amended dignity: our elders denied their human rights again

by | Nov 27, 2021 | Government

It will be up to the Senate to hold the line against one of the Morrison government’s most alarming sleights of hand regarding the welfare of Australia’s elderly. Sarah Russell investigates.

Just when you think this government can’t get any more sneaky. In a virtually unnoticed move, the Coalition government has snuck an alarming last-minute amendment into an aged care bill before Parliament that removes the legal and human rights of aged care residents. 

The amendment removes the civil and criminal protections to which all other Australians are entitled. If a member of the public is restrained without their consent, the perpetrator can be charged. In contrast, an aged care resident who is restrained without their consent will have no legal recourse.

Then the government has the gall to try to claim that this amendment relates to a recommendation of the Aged Care Royal Commission, when it is the complete opposite of what the royal commissioners recommended.

The Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 responds to some recommendations of the Royal Commission into Aged Care Quality and Safety. 

When the bill was introduced, it contained eight schedules. On October 25, after the second reading concluded, assistant minister Tim Wilson stepped out of his portfolio to add a raft of further amendments. 

Among the amendments was the addition of a ninth schedule to the bill. The ninth schedule deals with restrictive practices. Alarmingly, it grants providers immunity from civil and criminal claims. 

What is the Assistant Minister to the Minister for Industry, Energy and Emissions Reduction doing making amendments to an aged care bill? And why were these amendments made at the eleventh hour? If this was a Coalition strategy to avoid public debate on Wilson’s amendments, it has already worked for a month. 

MWM asked Wilson via his electoral office to explain his actions. His office replied, in part: ”Minister Wilson has no Ministerial oversight unto this area, he was responsible for putting the Bill to the House. If you have queries pertaining to the conscious or the amendments of this Bill, I suggest contacting the Minister responsible – the Hon Greg Hunt MP. His email is as follows: [email protected].”

The fact that “Minister Wilson has no Ministerial oversight unto this area,” yet acted on behalf of Hunt, at very least takes the spotlight off the Health and Aged Care Minister.

In Hunt’s revised explanatory memorandum, he claims “Schedule 9 of the Bill relates to Recommendation 17 of the Royal Commission.” However, at no stage did the royal commissioners recommend granting providers immunity from criminal and civil claims.

The commissioners recommended that people receiving aged care should be equally protected from restrictive practices (e.g. chemical, physical and environmental) as other members of the community. The government accepted this recommendation.

However, Schedule 9 will remove the civil and criminal protections to which all other Australians are entitled. This is contrary to the royal commissioners’ recommendations. It is also contrary to the legal and human rights of an aged care resident.

It is clear from the submissions to the Community Affairs Committee that there has been inadequate assessment of the government’s decision to grant providers immunity. COTA, for example, “welcomed Schedule 9”, claiming Schedule 9 fixes “the practicality of restrictive practices”. COTA’s submission, however, did not address the removal the civil and criminal protections. It appears they may not have noticed.

The strongest opponent to the removal of the civil and criminal protections came from Rodney Lewis, a solicitor of Elder Law Services Sydney. In its report to the Senate, the Community Affairs Committee referred to his criticism of the immunity proposal. However, the committee dismissed these criticisms and recommended that the Senate pass the bill.

This behaviour just adds to an ever growing list of the deceitful behaviour of the Coalition government regarding aged care:

  • The government continuing to throw large amounts of taxpayers’ money at aged care providers but refuses to tackle the systemic reform that is needed?
  • That Greg Hunt, Minister for Aged Care, gave his word that all residents and staff in aged care homes vaccinated by Easter and then failed to do so?
  • That Senator Richard Colbeck, Minister for Aged Care Services, was unable to recall how many residents had died from Covid?
  • That Dan Tehan, Minister for Trade, did not include an exemption for aged care in the recent Regional Comprehensive Economic Partnership (RCEP) free trade agreement?
  • That Hunt has given the home care sector an extra $6.5 billion over next four years without putting in place any accountability measures to stop the rorting of the system. 
  • That the federal Health Department released the “7th edition” of the Updated National COVID-19 Aged Care Plan when there was no 1st, 2nd, 3rd, 4th, 5th or 6th edition

All eyes are now on the Senate. It is essential that senators will agree that there needs to be informed debate before aged care residents are stripped of their legal rights. 

Dr Sarah Russell is a public health researcher who specialises in qualitative research. She has been the Principal Researcher at Research Matters since 1999. She is also the Director, Aged Care Matters. She believes the aged care system requires greater scrutiny, accountability and transparency.

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